Legal and Institutional Aspects
of Regulation
Global Symposium for Regulators
Roundtable Discussion
Yasmine, Hammamet, Tunisia
14 November 2005
ENSURING TELECOMMUNICATIONS SUCCESS AROUND THE WORLD
Introduction
Objectives of the module:
• Address the importance of an appropriate
legal, regulatory, and institutional
framework for effective regulation
• provide regulators, policy makers, and
stakeholders with best practice guidelines,
examples and practical approaches to ICT
regulation
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Regulation
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1
Online Module
Main Study
(divided
(divided into
into different
different chapters
chapters and
and subchapters
subchapters
as
as further
further described
described in
in the
the presentation)
presentation)
Practice Notes
(consists
(consists of
of case
case studies
studies and
and
summaries
summaries of
of additional
additional
materials
materials related
related to
to the
the
subject
subject matter)
matter)
14 November 2005
Reference Materials
(resources
(resources used
used to
to prepare
prepare
the
the study
study and
and module)
module)
Legal and Institutional Aspects of
Regulation
3
Overview of Online Module
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Regulation
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2
Why Regulate?
To ensure effective
transition and as a
safeguard when
market regulation fails
To prevent
anticompetitive
practices
To protect consumers
Why Regulate?
To enable growth
and development in
the sector
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Legal and Institutional Aspects of
Regulation
To implement
sector policy
5
Legal Context of Regulatory Reform
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Regulation
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3
Example: Using the Online Toolkit
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Regulation
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Example: Spam Legislation
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Regulation
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4
Example: Spam Legislation
Practice Notes
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Regulation
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Impact of Convergence
Regulators are responding in several ways:
• Shift to technology neutral treatment of
information and communications infrastructure
• Reform of licensing frameworks
• Converged regulators (e.g., Malaysia, Hong
Kong, Singapore, U.K.)
• Development of new laws to regulate ICT
(e.g., spam, intellectual property, content, data
protection, cyber-crime)
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5
Elements of Effective Regulation
What is the checklist of items for effective
regulation?
1. Adequate legal and regulatory framework
2. Proper consideration of organizational structure
ensuring functional independence
3. Appropriate consideration of internal functions
of regulatory authority
4. Adequate regulatory processes
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Legal and Institutional Aspects of
Regulation
Organizational and Institutional Approaches to
Regulation (1)
Single-sector regulator
Converged regulator
Institutional Design Options
Multi-sector regulator
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No sector-specific regulator,
reliance on competition law
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Regulation
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Organizational and Institutional Approaches to
Regulation (2)
¾
Separation of power & relationship with other entities
•
¾
The regulator needs functional “independence” to enact
and implement regulations without undue influence
Legal status of regulatory authorities
•
•
¾
Depends on the legal and political system of each country
Most regulators are either public or semi-public institutions,
and some are corporate bodies
Funding of regulators
•
Usually through one or combination of: government budget
appropriations, licensing fees, spectrum fees, other
regulatory fees
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Functional Aspects of Regulation (1)
1. Clear definition of functions and competencies of
the regulator
Regulatory functions generally includes:
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9
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Rule-making
Enforcement & dispute resolution
Licensing
Spectrum management and allocation
Interconnection
Price regulation
Universal service obligations
Establishing and approving technical standards
Competition safeguards
Management of quality of service
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Regulation
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Functional Aspects of Regulation (2)
2. Staffing and remuneration
•
Appointment process
•
Professional qualifications
•
Issues of conflict of interest in appointment
of Board members
•
Removal from office
•
Independence from outside influence
•
Determination of salary
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Functional Aspects of Regulation (3)
3. Ethics
a.
Avoidance of Conflict
• Rules on gifts
• Rules on confidentiality of information
• Rules on disclosure of information
b. Disclosure of Interests
• Prohibitions on financial and personal gain
• Divestment of interests
• Resignation
• Recusal
c. Post Employment
• Disclosure of outside employment offer
• “cooling off” period before undertaking new employment
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Regulatory Processes (1)
1. Decision-making processes – ensure principles of
transparency, openness and public participation
Initiate action
e.g., Prepare consultation document
Informal consultations to help define the
issue (as necessary)
Publish consultation document with timeframe for
comments
(usually 7-30 days)
Supplementary consultations: public
hearings; surveys; workshops (as
necessary)
Written comments received
Evaluate input and publish comments
Reply comments (strongly recommended)(usually
7-14 days)
Evaluate input/ publish reply comments
Publish final decision
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Legal and Institutional Aspects of
Regulation
Regulatory Processes (2)
2. Accountability and consumer protection
•
•
•
Responsibility over consumer complaints, consumer education,
protecting consumer interests in policies and regulations
Accountability to government (government oversight & judicial review)
Most regulators have reporting requirements to sector ministry or other
government body
Reporting Requirements
None
Other Government
Ministry & Legislatu re
Legislatu re
3%
13%
14%
31%
63%
Ministry
W hom the regu lator reports to
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Regulation
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Regulatory Processes (3)
3. Dispute resolution
Dispute resolution mechanisms generally include:
1.
2.
“Official mechanisms” – derived from the constitutional,
legislative and regulatory framework applicable to the
telecommunications sector, e.g., regulatory adjudication, courts
“Non-official mechanisms” – or alternative dispute resolution
(ADR), where individuals associated with such procedures do
not discharge any judicial or executive duties
• Negotiation
• Mediation
• Conciliation
• Arbitration
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Regulatory Processes (4)
4. Enforcement
Minimum attributes of an enforcement regime:
¾ Adequate resources for regulator to exercise enforcement
activities
¾ Enabling legislation empowering regulator with ability to:
dispose of substantive matters, conduct inquiries, collect and
request information, determine culpability, impose sanctions
¾
Efficient mechanism for dealing with complaints regarding
non-compliance of rules, regulations and license conditions
¾
Transparent procedures for investigations, judgment criteria,
sanctions and appeals, and dispute resolution
¾
Accountability and appeal mechanism to a higher level within
the regulator or outside body, such as a court or ministry
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Thank You
Telecommunications Management Group, Inc. (TMG)
1600 Wilson Blvd., Suite 710
Arlington, VA 22209 USA
Tel: +1.703.224.1501
www.tmgtelecom.com
Contacts: Ms. Mindel De La Torre and Ms. Janet Hernandez
mindel@tmgtelecom.com
janet@tmgtelecom.com
ENSURING TELECOMMUNICATIONS SUCCESS AROUND THE WORLD
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